## Facts

- The Humane Society of the United States (HSUS) is a nonprofit organization that investigates animal fighting and assists with rescue and care of animals seized in animal-fighting cases.
- The United States Postal Service (USPS) delivered a monthly publication titled *The Feathered Warrior* to several thousand subscribers and accepted it at discounted periodicals postage rates.
- HSUS alleged that *The Feathered Warrior* contained extensive advertising and other content tied to gamefowl fighting, including ads for fighting birds and related items, and that such materials were used in animal-fighting operations.
- Federal law makes it unlawful to use the mails to advertise an animal or certain sharp instruments for use in “animal fighting ventures.” 7 U.S.C. § 2156.
- The postal statutes treat matter that violates such restrictions as “nonmailable.” See 39 U.S.C. § 3001.
- HSUS petitioned USPS to declare *The Feathered Warrior* nonmailable under these provisions.
- USPS denied HSUS’s petition.
- HSUS filed suit in the U.S. District Court for the District of Columbia under the Administrative Procedure Act (APA), contending that USPS’s denial was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
- USPS argued the denial was not subject to APA review because USPS is generally exempt from the APA under 39 U.S.C. § 410(a), and also challenged HSUS’s standing.
- While the case was pending, Congress amended 7 U.S.C. § 2156, changing the statutory framework relevant to what qualifies as prohibited animal-fighting-related mail matter.
- The case came before Judge James Robertson on HSUS’s motion for summary judgment and USPS’s motion to dismiss or, alternatively, for summary judgment; the court issued an order (explained in the written opinion) denying both motions without prejudice and remanding to USPS.

## Issues

1. Whether USPS’s denial of HSUS’s petition to treat *The Feathered Warrior* as nonmailable was judicially reviewable under the APA despite USPS’s general statutory exemption, including whether the denial was a “final agency action.”
2. Whether the statutory exception for “proceedings concerning the mailability of matter” in 39 U.S.C. § 410(a) applies only to formal adjudications or also to an informal petition-and-denial process like the one used here.
3. Whether HSUS had Article III standing to challenge USPS’s denial based on alleged organizational injuries tied to animal-fighting investigations and animal care.
4. Given amendments to 7 U.S.C. § 2156 during the litigation, whether the proper course was immediate merits relief or remand to USPS for reconsideration under the updated statute.

## Decision

- The court held that USPS’s denial of HSUS’s petition qualified as a reviewable “final agency action” within the meaning of the APA.
- The court concluded that, although USPS is broadly exempt from the APA by 39 U.S.C. § 410(a), the exemption does not apply to “proceedings concerning the mailability of matter,” and that this exception was not limited to formal, trial-type administrative adjudications.
- The court therefore rejected USPS’s argument that an informal denial of a mailability petition falls outside the APA carve-out and is insulated from judicial review.
- The court did not grant summary judgment to HSUS on the merits of whether *The Feathered Warrior* must be treated as nonmailable.
- Because Congress amended 7 U.S.C. § 2156 after HSUS filed suit, the court remanded the matter to USPS for further consideration under the amended statutory standard.
- The court denied HSUS’s motion for summary judgment and USPS’s motion to dismiss or for summary judgment without prejudice and stayed the district court proceedings pending USPS’s reconsideration.

## Legal Principles

- USPS is generally exempt from the APA under 39 U.S.C. § 410(a), but Congress created specified exceptions, including for “proceedings concerning the mailability of matter.”
- A “proceeding” concerning mailability for purposes of § 410(a) is not confined to formal adjudications; an agency’s consideration and denial of a mailability petition can fall within the exception.
- An agency denial that marks the consummation of the agency’s decisionmaking process and has real-world legal consequences can qualify as “final agency action” reviewable under 5 U.S.C. § 704.
- When an intervening statutory amendment changes the governing legal standard during litigation, a court may deny pending dispositive motions without prejudice and remand to the agency to apply the updated statute in the first instance, while retaining the ability to resume judicial review after remand.

## Conclusion

The district court held that USPS’s denial of HSUS’s petition to declare *The Feathered Warrior* nonmailable was a reviewable final agency action under the APA because it fell within the § 410(a) exception for mailability matters, but it declined to reach a final merits ruling and instead remanded to USPS for reconsideration in light of amendments to 7 U.S.C. § 2156, denying both sides’ motions without prejudice and staying the case.


Humane Soc'y of the U.S. v. U.S. Postal Serv., 609 F. Supp. 2d 85 (D.D.C. 2009)